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Herman Franck v. Robert Barrington

February 27, 2013

HERMAN FRANCK, PLAINTIFF AND APPELLANT,
v.
ROBERT BARRINGTON, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 34201000081503CUBCGDS)

The opinion of the court was delivered by: Duarte , J.

Franck v. Barrington

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Herman Franck, an attorney, represented defendant Robert Barrington, and after Franck sued for unpaid fees, Barrington countersued. The parties arbitrated the dispute, Barrington prevailed, and Franck, representing himself, now appeals from an order confirming the arbitral award. Franck generally seeks review of the merits of the arbitral award. But because Franck does not demonstrate that the arbitrator exceeded its powers, the trial court properly confirmed the arbitral award. Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Franck sued Barrington, seeking damages based on breach of written fee agreements authorizing Franck to prosecute three lawsuits, as follows: (1) Barrington and Susan Adams v. Nocon, (the "Nocon" case), (2) Susan Adams v. Blum, (the "Blum" case), and (3) Susan Adams (as guardian ad litem for Shirley Adams) v. Triano, (the "Triano" case). In breach of the fee agreements, Barrington discharged Franck, settled the Nocon case himself, and refused to honor Franck's attorney fee lien or pay Franck what he had earned in any of the cases. Two fee agreements were attached to the complaint, one for the Nocon case and one for the Blum and Triano cases, as well as another case that is not at issue in this appeal. In part, Franck alleged fraud, claiming Barrington misrepresented the value of certain firearms seized from him in the Nocon matter, misrepresented that he would honor the fee agreements, and misrepresented that the Triano and Blum fees would be paid out of the settlement or verdict in the Nocon matter, when Barrington never intended to honor his agreements.

Barrington cross-complained, in part alleging that Franck had agreed to represent Susan Adams in the Nocon litigation, but failed to obtain Barrington's informed consent to that dual representation, which created at least a potential conflict of interest. Barrington also alleged Franck failed to advise him of potential conflicts of interest as to the agreement to fund the Triano and Blum cases out of the Nocon case, that a lien held by Franck was invalid, and that Franck performed negligently in each of the cases.

The parties stipulated to binding arbitration.

On October 3, 2011, the arbitrator, retired Sacramento County Superior Court Judge Darrel Lewis, issued an amended decision, finding Barrington should recover $126,546.49 from Franck, and Franck should recover nothing.

The arbitral award recites that the hearing was held on two days, both parties testified, and an expert testified for Barrington on the issue of the "attorney standard of care and ethical and fiduciary duties of attorneys." Briefing and oral argument were considered, but at the request of both parties, the arbitrator wrote his award "in summary fashion" in order to minimize the arbitration fees.

The arbitrator first found the Blum and Triano fee agreement to be void due to Franck's breach of an ethical rule. (Rules Prof. Conduct, rule 3-310(F)(3) ["A member shall not accept compensation for representing a client from one other than the client unless . . . . (3) The member obtains the client's informed written consent"].) The damages to Barrington for this breach were $1,100 in costs paid.

The arbitrator next found the Nocon agreement was voidable "for non-compliance with the rules of professional conduct and for failure to advise of potential conflicts of interest among the parties" to that suit, and that Barrington elected to void that agreement by "the filing of the complaint and answer to Franck's complaint[.]" Barrington had already paid $53,260 towards that agreement. Franck could not enforce the contingency ...


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